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STATE v. JERKE

Cite as 302 Neb. 372

State of Nebraska, appellant and cross-appellee, 

v. Jedo J. Jerke, appellee and cross-appellant.

___ N.W.2d ___

Filed March 1, 2019. No. S-18-426.

1. Constitutional Law: Postconviction: Pleas. The common-law procedure for withdrawing a plea after conviction recognized in State v.

Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013), is available only when 

(1) the Nebraska Postconviction Act is not, and never was, available as 

a means of asserting the ground or grounds justifying withdrawing the 

plea and (2) a constitutional right is at issue.

2. Judgments: Appeal and Error. When dispositive issues on appeal 

present questions of law, an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

3. Postconviction: Pleas. Whether the common-law procedure for withdrawing a plea after conviction recognized in State v. Gonzalez, 285 

Neb. 940, 830 N.W.2d 504 (2013), is available presents a question 

of law.

4. Effectiveness of Counsel: Proof: Time. The factual predicate for a 

claim of ineffectiveness of counsel concerns whether the important 

objective facts could reasonably have been discovered, not when the 

claimant should have discovered the legal significance of those facts.

5. Effectiveness of Counsel: Proof. When considering the factual predicate of a claim of ineffective assistance of counsel based on the failure 

to advise of deportation consequences, the important objective facts are 

(1) knowledge of what trial counsel did and did not advise the defendant 

and (2) the existence of the applicable deportation law.

6. Postconviction: Pleas: Proof. The unavailability of the Nebraska 

Postconviction Act is not an affirmative defense; it is a material element that must be pled and proved by a defendant seeking to use the 

procedure for withdrawing a plea after conviction recognized in State v.

Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/29/2019 01:06 AM CDT
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Cite as 302 Neb. 372

Appeal from the District Court for Hall County: Teresa K. 

Luther, Judge. Reversed and remanded with directions.

Douglas J. Peterson, Attorney General, and James D. Smith, 

and Martin R. Klein, and Katherine J. Doering, Deputy Hall 

County Attorneys, for appellant.

Mark Porto, of Porto Law Office, for appellee.

Kevin Ruser, of University of Nebraska College of Law 

Immigration Clinic, and David Shea and Damon Hudson, 

Senior Certified Law Students, for amicus curiae University of 

Nebraska College of Law Immigration Clinic.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Stacy, J.

In 2012, Jedo J. Jerke entered a no contest plea to a charge 

of second degree assault. He was convicted and sentenced to 

a term of 4 to 6 years’ imprisonment. After completing his 

sentence, Jerke moved to vacate the sentence and withdraw 

the plea pursuant to the common-law procedure recognized in 

State v. Gonzalez,

1

 arguing his trial counsel was ineffective for 

failing to advise him before he entered his plea that second 

degree assault was a deportable offense. The district court 

granted Jerke’s motion, and the State appeals. Because we conclude the common-law procedure is not available to Jerke as a 

matter of law, we reverse the district court’s order and remand 

the cause with directions to dismiss.

FACTS

Jerke is from South Sudan, Africa, and came to the United 

States in 2006 as a political refugee. He is not, and never has 

been, a U.S. citizen.

1 State v. Gonzalez, 285 Neb. 940, 830 N.W.2d 504 (2013).
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In March 2012, Jerke was charged with two counts of assault 

in the second degree and one count of criminal impersonation. 

At the time, the assault charges were Class III felonies carrying a sentence of 1 to 20 years’ imprisonment. Jerke informed 

his appointed counsel of his immigration status when counsel 

originally visited him in jail. Under federal law, a crime of violence for which a sentence of 1 year or more is imposed is an 

“aggravated felony” and a deportable offense.2 Counsel did not 

advise Jerke of this at any time.

Jerke originally entered not guilty pleas to each of the 

charges, and a bench trial began August 6, 2012. After the 

State called its first witness, who described an intoxicated 

Jerke striking him in the mouth with a glass tequila bottle 

and knocking out several of his teeth, Jerke informed the 

court he wished to accept the State’s plea offer and enter a no 

contest plea to one count of second degree assault. The plea 

colloquy included an advisement pursuant to Neb. Rev. Stat. 

§ 29-1819.02(1) (Reissue 2016), which provides:

Prior to acceptance of a plea of guilty or nolo contendere 

to any offense punishable as a crime under state law, 

except offenses designated as infractions under state law, 

the court shall administer the following advisement on the 

record to the defendant:

IF YOU ARE NOT A UNITED STATES CITIZEN, 

YOU ARE HEREBY ADVISED THAT CONVICTION 

OF THE OFFENSE FOR WHICH YOU HAVE BEEN 

CHARGED MAY HAVE THE CONSEQUENCES OF 

REMOVAL FROM THE UNITED STATES, OR DENIAL 

OF NATURALIZATION PURSUANT TO THE LAWS 

OF THE UNITED STATES.

The court accepted Jerke’s no contest plea, and subsequently 

sentenced him to imprisonment for a term of 4 to 6 years.

While Jerke was serving his sentence, he learned he did 

not qualify for community work release, because he had an 

2 8 U.S.C. §§ 1101(a)(43)(F) and 1227(a)(2)(A)(iii) (2012).
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“immigration hold.” Jerke did not investigate the nature of the 

immigration hold during the term of his incarceration or upon 

his release from prison in 2015.

[1] In November 2017, Jerke learned from immigration 

authorities that he would be deported based on his assault 

conviction. He then moved to vacate his conviction and withdraw his plea pursuant to this court’s holding in Gonzalez.

3

That case recognized a common-law procedure under which a 

defendant may, in very limited circumstances, move to vacate 

a conviction and withdraw a plea after the conviction has 

become final. According to Gonzalez:

This procedure is available only when (1) the [Nebraska 

Postconviction] Act[4] is not, and never was, available as a 

means of asserting the ground or grounds justifying withdrawing the plea and (2) a constitutional right is at issue. 

In sum, this common-law procedure exists to safeguard 

a defendant’s rights in the very rare circumstance where 

due process principles require a forum for the vindication 

of a constitutional right and no other forum is provided 

by Nebraska law.5

In his motion, Jerke alleged his Sixth Amendment right to 

counsel was violated when his trial counsel failed to advise 

him of the deportation consequences of his plea-based conviction. Jerke alleged this constituted ineffective assistance 

of counsel pursuant to the U.S. Supreme Court’s opinion in 

Padilla v. Kentucky.

6

After conducting an evidentiary hearing, the district court 

granted Jerke’s motion. In opposing the motion, the State 

had argued that Jerke could have raised his claims under 

the Nebraska Postconviction Act during the period of his 

3 Gonzalez, supra note 1.

4 Neb. Rev. Stat. §§ 29-3001 to 29-3004 (Reissue 2016).

5 Gonzalez, supra note 1, 285 Neb. at 949-50, 830 N.W.2d at 511.

6 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 

(2010).
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incarceration, and thus could not bring a common-law claim 

under Gonzalez. But the court found the State had waived this 

argument by not filing a motion to dismiss.

The court entered an order that vacated the judgment of conviction and sentence, allowed Jerke to withdraw his plea, and 

set the matter for further hearing. The State filed this appeal, 

and Jerke cross-appealed. We granted Jerke’s motion to bypass 

the Nebraska Court of Appeals.

ASSIGNMENTS OF ERROR

The State assigns, restated, that the district court erred in 

(1) granting Jerke’s common-law motion, because Jerke had a 

remedy under the Nebraska Postconviction Act, and (2) finding 

trial counsel rendered ineffective assistance.

On cross-appeal, Jerke asks this court to overrule State v. 

Mamer7 and hold instead that the factual predicate of an ineffective assistance of counsel claim based on Padilla does not 

arise until a reasonable defendant learns the actual immigration 

consequences of his or her plea-based conviction.

STANDARD OF REVIEW

[2] When dispositive issues on appeal present questions 

of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below.8

ANALYSIS

[3] Whether the common-law procedure recognized in 

Gonzalez is available to Jerke presents a question of law. We 

begin our analysis with an overview of the Gonzalez holding.

State v. Gonzalez

Our 2013 decision in Gonzalez recognized that in Nebraska, 

there are two statutory avenues available to a defendant seeking 

7 State v. Mamer, 289 Neb. 92, 853 N.W.2d 517 (2014).

8 State v. Zlomke, 268 Neb. 891, 689 N.W.2d 181 (2004).
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to withdraw a plea after his or her conviction has become 

final. The first is found in § 29-1819.02. That statute requires 

that before accepting a plea of guilty or nolo contendere, a 

court must give the defendant a statutory advisement regarding the possible immigration consequences of conviction.9

 If 

the required advisement is not given, the statute allows the 

defendant to move to vacate the judgment, withdraw the plea, 

and enter a plea of not guilty.10 This statutory remedy is available even after the defendant has served his or her sentence.11

Here, the record shows a § 29-1819.02 advisory was given to 

Jerke, and no one contends the remedy of § 29-1819.02(2) is 

available to him.

The second statutory avenue is the Nebraska Postconviction 

Act.12 Enacted to protect constitutional rights, this act allows a 

defendant “in custody under sentence” claiming a right to be 

released due to denial or infringement of a constitutional right 

to move to have his or her conviction and sentence vacated 

or set aside.13 A postconviction motion is not intended to be 

concurrent with any other remedy existing in the courts of this 

state, so if a postconviction motion states facts which, if true, 

would constitute grounds for relief under another remedy, the 

motion will be dismissed without prejudice.14 A postconviction 

motion must be filed within 1 year of the triggering events set 

out in § 29-3001(4).15

After Gonzalez recognized these two statutory means of collaterally attacking a final criminal conviction, it specifically 

addressed whether a “common-law procedure also authorize[s] 

9 § 29-1819.02(1).

10 § 29-1819.02(2).

11 State v. Garcia, 301 Neb. 912, 920 N.W.2d 708 (2018).

12 §§ 29-3001 to 29-3004.

13 See § 29-3001(1).

14 See, § 29-3003; Gonzalez, supra note 1.

15 See State v. Torres, 300 Neb. 694, 915 N.W.2d 596 (2018).
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[a] motion to withdraw [a] plea after [the] conviction ha[s] 

become final.”16 The court in Gonzalez framed the issue as 

“whether a court has jurisdiction to consider” a common-law 

motion to withdraw a plea “when the motion is filed after the 

underlying conviction is final.”17

Gonzalez recognized that on at least two prior occasions, 

this court had refused to recognize a nonstatutory procedure 

whereby defendants could raise claims related to criminal 

cases.18 In State v. El-Tabech,

19 we held there was no procedure by which a defendant convicted of murder could seek 

state-funded DNA testing when the time period for filing a 

motion for new trial based on newly discovered evidence had 

passed, and therefore, we affirmed the district court’s dismissal of the defendant’s motion seeking such. And in State 

v. Louthan,

20 we held a defendant could not, in a separate 

proceeding, challenge the validity of a prior conviction for 

purposes of sentence enhancement, in part because no statute 

authorized the defendant to do so. For the sake of completeness, we note that after our decision in Gonzalez, we held in 

State v. Smith21 that the district court correctly dismissed for 

lack of jurisdiction a defendant’s motion to vacate his sentence based on an allegation it was unconstitutional, reasoning 

the motion was not authorized by law, because the Nebraska 

Postconviction Act was the defendant’s sole remedy to collaterally attack his conviction and sentence.

Gonzalez distinguished the procedures at issue in El-Tabech

and Louthan by reasoning they were not constitutionally 

16 Gonzalez, supra note 1, 285 Neb. at 946, 830 N.W.2d at 509.

17 Id. at 944, 830 N.W.2d at 507.

18 See, State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000); State v. 

Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).

19 El-Tabech, supra note 18.

20 Louthan, supra note 18.

21 State v. Smith, 288 Neb. 797, 851 N.W.2d 665 (2014).
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mandated. In contrast, Gonzalez reasoned that in certain circumstances, a common-law procedure for a conviction to be 

vacated and a plea withdrawn was constitutionally mandated. 

Gonzalez then proceeded to identify those circumstances and 

articulate the limiting principles that govern that commonlaw procedure.

Gonzalez explained the common-law procedure is civil in 

nature and is available in only extremely limited circumstances. It emphasized that the Nebraska Postconviction Act is 

the primary procedure for bringing collateral attacks on final 

criminal convictions and made clear that where a “defendant 

has a collateral attack that could be asserted under the [a]ct, 

that [a]ct is his or her sole remedy.”22 Notably, Gonzalez held 

that “[o]nly if a defendant does not and never could have 

asserted the basis of his or her collateral attack under the [a]ct 

may he or she invoke the common-law procedure and move to 

withdraw a plea after the conviction has become final.”23

Since our holding in Gonzalez, this court has considered 

several cases in which a defendant sought to use the commonlaw procedure.24 Because Jerke urges us to reconsider our 

holding in one of those cases, we address it next.

State v. Mamer

In Mamer,

25 a defendant pled guilty to a felony charge and 

was convicted and sentenced. Due to credit for time served, 

he was incarcerated only for a few weeks following the conviction. Several months after he was released, he filed a 

motion seeking to vacate his plea and set aside his conviction 

pursuant to the procedure set forth in Gonzalez. The motion 

alleged that he was not a U.S. citizen and that his trial counsel 

22 Gonzalez, supra note 1, 285 Neb. at 949, 830 N.W.2d at 510.

23 Id.

24 See, State v. Merheb, 290 Neb. 83, 858 N.W.2d 226 (2015); Mamer, supra

note 7; State v. Yuma, 286 Neb. 244, 835 N.W.2d 679 (2013).

25 Mamer, supra note 7.
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provided ineffective assistance of counsel under Padilla26 by 

not advising him before he entered his plea that the conviction 

was a deportable offense. The motion did not address why the 

defendant had not raised the Padilla claim via a motion for 

postconviction relief during the time he was incarcerated.

The State moved to dismiss the motion, and we treated 

that motion as one to dismiss for failure to state a claim on 

which relief could be granted. We then addressed the question 

whether, assuming all the allegations in the motion were true, 

the defendant had stated a common-law claim to withdraw his 

plea and vacate his sentence. Part of our analysis focused on 

whether the defendant had alleged facts, or could allege facts, 

showing the Nebraska Postconviction Act was never available 

to vindicate his ineffective assistance of counsel claim.

This analysis involved determining when the “factual predicate” of the defendant’s ineffective assistance of counsel claim 

“could have been discovered through the exercise of due 

diligence.”27 We framed the question as when, in the exercise 

of due diligence, the defendant “could have discovered the 

important objective facts concerning both trial counsel’s deficient conduct and the resulting prejudice.”28

[4,5] The factual predicate for a claim concerns whether the 

important objective facts could reasonably have been discovered, not when the claimant should have discovered the legal 

significance of those facts.29 And when considering the factual 

predicate of a claim of ineffective assistance of counsel based 

on the failure to advise of deportation consequences, we found 

the important objective facts are (1) knowledge of what trial 

counsel did and did not advise the defendant and (2) the existence of the applicable deportation law.30

26 Padilla, supra note 6.

27 See § 29-3001(4)(b).

28 Mamer, supra note 7, 289 Neb. at 99, 853 N.W.2d at 524.

29 Id.

30 See id.
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We rejected the suggestion that the defendant could not have 

discovered the factual predicate of his ineffective assistance 

claim until he learned the actual immigration consequences 

of his plea. Instead, we found that because the district court 

had given the § 29-1918.02 advisement before accepting the 

plea, the defendant could have, in the exercise of reasonable diligence, discovered the consequences of the applicable 

deportation law while he was incarcerated. As such, we found 

he was unable to “demonstrate an essential element of his 

[common-law] claim: that he had no other means to vindicate 

the constitutional right at issue.”31 We thus held the district 

court properly granted the State’s motion to dismiss.

Unavailability of Nebraska

Postconviction Act

Cannot Be Waived

Jerke’s motion seeking to vacate his sentence and withdraw 

his plea, like the motion at issue in Mamer, did not allege he 

was unable to bring his ineffective assistance of counsel claim 

via the Nebraska Postconviction Act during the time he was 

incarcerated. But unlike Mamer, the State here did not move 

to dismiss the motion on that basis. Instead, the State argued 

to the district court that Jerke was “procedurally barred” from 

bringing a common-law claim under Gonzalez, because he 

could have brought an ineffective assistance of counsel claim 

under the Nebraska Postconviction Act while he was in custody. The district court, relying on Mamer, found the State had 

waived this argument by not filing a motion to dismiss. The 

State assigns this as error, and we agree.

In Mamer, we addressed the applicability of the Nebraska 

Postconviction Act in the context of the State’s motion to 

dismiss, because that is how the issue was framed by the parties. But properly understood, the applicability of the act is 

not an affirmative defense to a Gonzalez common-law motion 

31 Id. at 101, 853 N.W.2d at 525.
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seeking to vacate a conviction and withdraw a plea. Rather, it 

is something the defendant must plead and prove in order to 

utilize the common-law procedure at all.

As our case law suggests, there is a hierarchy of sorts in 

the available remedies for defendants seeking to vacate a conviction and withdraw a plea based on a Padilla-type claim. A 

defendant who has not been given the statutory advisement 

required by § 29-1819.02 must seek relief under that statute. 

When the advisement was given and the statutory relief of 

§ 29-1819.02 is unavailable, a defendant must seek relief under 

the Nebraska Postconviction Act. And only when the act is not, 

and never was, available, is the common-law procedure under 

Gonzalez available.

[6] Here, the trial court’s reasoning effectively construed 

the availability of postconviction relief as an affirmative 

defense to be raised by the State. But the unavailability of the 

Nebraska Postconviction Act is not an affirmative defense; 

it is a material element that must be pled and proved by a 

defendant seeking to use the Gonzalez procedure. This error 

of law prevented the trial court from considering an essential 

element of Jerke’s common-law claim under Gonzalez.

Nebraska Postconviction Act

Was Available to Jerke

Jerke contends the Nebraska Postconviction Act was not 

available to him as a means of pursuing his ineffective assistance of counsel claim, because he did not learn he was being 

deported based on his conviction until after he was released 

from custody. This argument requires analysis of when Jerke 

could have discovered the factual predicate of his constitutional claim.

The Nebraska Postconviction Act contains a 1-year limitations period, which runs from the later of

(a) The date the judgment of conviction became final 

by the conclusion of a direct appeal or the expiration of 

the time for filing a direct appeal;
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(b) The date on which the factual predicate of the 

constitutional claim or claims alleged could have been 

discovered through the exercise of due diligence;

(c) The date on which an impediment created by state 

action, in violation of the Constitution of the United 

States or the Constitution of Nebraska or any law of this 

state, is removed, if the prisoner was prevented from filing a verified motion by such state action;

(d) The date on which a constitutional claim asserted 

was initially recognized by the Supreme Court of the 

United States or the Nebraska Supreme Court, if the 

newly recognized right has been made applicable retroactively to cases on postconviction collateral review; or

(e) August 27, 2011.32

In his cross-appeal, Jerke asks us to overrule Mamer and 

reexamine what constitutes the factual predicate of an ineffective assistance of counsel claim based on Padilla. He specifically asks us to find that the factual predicate of his claim 

should be (1) knowledge of what his trial counsel advised him 

and (2) knowledge that he would be deported based on his 

plea-based conviction. He acknowledges this is inconsistent 

with Mamer, but suggests the Mamer analysis is generally 

unfair because it expects a defendant

to not only act as a more effective attorney than the one 

he had by maneuvering through the federal immigration statutes and correctly analyzing the impact of his 

criminal conviction on his immigration status, but . . . to 

do so at a time when he ha[s] no reason to suspect there 

was a problem because deportation proceedings had not 

been initiated.33

Jerke argues that the “logical effect” of Mamer is “to place an 

obligation on an untrained defendant to generate the wherewithal to perform as a more competent attorney than his 

32 § 29-3001(4).

33 Brief for appellee on cross-appeal at 17.
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actual attorney, and to do so from within the confines of 

prison at a time when he has no reason to suspect a problem 

to begin with.”34

Jerke’s argument mischaracterizes our holding in Mamer. 

Most notably, Mamer did not hold that the factual predicate of 

an ineffective assistance of counsel claim exists at a time when 

a defendant has “no reason to suspect there was a problem.” To 

the contrary, Mamer held that the factual predicate could have 

been discovered through the exercise of reasonable diligence 

once the defendant was advised by the trial court, pursuant to 

§ 29-1819.02(1), that a conviction may result in immigration 

consequences. Mamer reasoned that from and after the time of 

that advisement, the defendant knew of a possible problem with 

his immigration status and, with the exercise of due diligence, 

could have discovered and raised the ineffective assistance of 

trial counsel argument during the period of incarceration.

With the exception of Mamer, we have not directly analyzed 

the factual predicate language of § 29-3001(4)(b) in the context of an ineffective assistance of counsel claim. It is notable, 

however, that language in two related federal statutes is nearly 

identical. First, 28 U.S.C. § 2255(f)(4) (2012) states the 1-year 

limitations period for a motion to vacate a criminal conviction 

starts to run from “the date on which the facts supporting the 

claim or claims presented could have been discovered through 

the exercise of due diligence.” And 28 U.S.C. § 2244(d)(1)(D) 

(2012) requires a state prisoner who wants collateral relief 

from a federal court to file a petition within 1 year of “the 

date on which the factual predicate of the claim or claims 

presented could have been discovered through the exercise of 

due diligence.”

Contrary to Jerke’s argument, federal case law in this area is 

generally consistent with the analysis we employed in Mamer.

35

34 Id. at 18.

35 See, Clarke v. U.S., 703 F.3d 1098 (7th Cir. 2013); Hasan v. Galaza, 254 

F.3d 1150 (9th Cir. 2001).
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In fact, the Seventh Circuit has applied a similar analysis in a 

similar situation. In Clarke v. U.S.,36 a litigant filed a § 2255 

motion asking that her conviction be set aside on the ground 

she was not advised that she could be removed or deported if 

convicted based on her plea. The motion was filed more than 

1 year after her conviction became final, and it was untimely 

unless filed within 1 year of the date the facts supporting her 

claim could have been discovered through the exercise of 

reasonable diligence.37 The litigant admitted her lawyer had 

told her there might be “‘immigration consequences’” if she 

entered a guilty plea,38 but claimed he did not tell her directly 

that the result of the conviction would be deportation. She 

argued the 1-year statute of limitations did not begin to run 

until she actually discovered she would be deported.

But the Seventh Circuit explained that the “dependence of 

the statute of limitations on the petitioner’s exercise of due diligence is equivalent to a rule of ‘inquiry notice.’”39 Reasoning 

that the factual predicate of the litigant’s claim included the 

lawyer’s failure to advise of a critical consequence of the 

conviction, the court found the litigant had inquiry notice of 

that factual predicate at the time of the plea, when the lawyer 

told her there might be “immigration consequences.” Having 

received such inquiry notice, she should have at that point 

exercised due diligence to discover the facts supporting her 

claim, and the statute of limitations began to run.

Contrary to the argument made to this court, Jerke was not 

unaware of possible immigration consequences resulting from 

his conviction until he was informed that deportation proceedings had been initiated. Rather, the record affirmatively shows 

that before he entered his plea, he was advised that if he was 

not a U.S. citizen, conviction of the offense for which he was 

36 Clarke, supra note 35.

37 § 2255(f)(4).

38 Clarke, supra note 35, 703 F.3d at 1099.

39 Id. at 1100.
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charged could result in his removal from the United States. The 

record also affirmatively shows that while incarcerated, Jerke 

learned an “immigration hold” had been placed on him. These 

facts, whether alone or in combination, put him on inquiry 

notice of a possible problem with his immigration status 

related to his conviction, and in the exercise of due diligence, 

he could have discovered the factual predicate of his ineffective assistance of counsel claim during the time he was incarcerated. The Nebraska Postconviction Act was thus available 

to Jerke as a remedy for his ineffective assistance of counsel 

claim. And because the act was available, the procedure under 

Gonzalez was not.

CONCLUSION

Under Gonzalez, the common-law procedure for withdrawing a plea is available only when the Nebraska Postconviction 

Act is not, and never was, available as a means of asserting 

the ground or grounds justifying withdrawing the plea and a 

constitutional right is at issue. As such, the unavailability of the 

Nebraska Postconviction Act is a material element that must be 

pled and proved by a defendant seeking to use the Gonzalez

procedure. The act was available to Jerke during the time he 

was in custody, because he could have discovered the factual 

predicate of his ineffective assistance of counsel claim through 

the exercise of reasonable diligence.

Because the common-law procedure is not available to Jerke 

as a matter of law, we reverse the district court’s order and 

remand the cause with directions to dismiss.

Reversed and remanded with directions.